www.elsblog.org - Bringing Data and Methods to Our Legal Madness

12 May 2015

The Absence of ELS from the Emergence of Behavioral Insight Teams Around the World.

In recent years, various countries have started the process of establishing behavioral insight teams ("BIT") that will advise the government on usage of knowledge from psychology and behavioral economics. Both the UK and U.S. governments rely increasingly on insights from behavioral sciences, especially with regard to non-deliberative choice by individuals. The EU, a comparative late-comer to this game, has recently established a task force, which published a guideline report, describing how policy makers should use psychology when implementing behaviorally based legal policy in various areas.

In the last year, I have been to a few meetings with academics and practitioners who are involved in BIT in the U.K, U.S., and Israel as well as the EU, which made me wonder about the missing role of ELS in what seems to be an emerging regulatory trend. Moreover, in the first BIT international conference which will take place in London in September, there is a highly impressive roaster of some of the world's leading psychologists and behavioral economists, but with the exception of references to the work of Cass Sunstein, I didn’t recognize any scholars associated with ELS or even with any law school.

One might have thought that the BIT which is, by definition, an evidence-based approach to law-making could have become a natural hub for empirical legal studies. Many of their recommendations are built on very intense field experiments, which lie at the heart of some of the work done by ELS scholars. It might be the case that simply by path dependency ELS scholars are late to a new party and hence I am not discussing here anything which is sustainable, nonetheless, there is a chance that this might tell us something about both ELS and BIT.

The first point is highly related to the argument regarding the role of legal theory, I have discussed in this blog few weeks ago, based on the work of Dagan et al. and Fishman, on the role of legal theory in ELS. Presumably one might argue that without legal theory, ELS might lose some of their advantage relative to psychology and economics. Indeed, much of the previous discussion around the "nudge" approach came from legal theorists and philosophers and not from ELS scholars. Furthermore, as I also mentioned in a previous post, when legal theory is missing many in the social sciences might feel that methodology-wise their line of research is more technically advanced.

Looking at this question from the reverse perspective, I wonder whether it makes sense that the scholars who are involved in BIT initiatives should care about issues such as fairness, autonomy, liberalism and paternalism, and instrument choice or institutional constrains. I tend to believe that they should and that, in the long-run, as BIT will evolve, the need for ELS involvement will prove helpful to the success of these projects. I hope that with greater theoretical interest and interaction between the two communities, both will bring to the table their relative advantages and create a more coherent research paradigm which would allow behavioral knowledge a proper integration with state efforts to modify human behavior.